Appeal of Gunn

• Decision Date: 06 July 1893
• Parties: Appeal of GUNN.
• Court: Connecticut Supreme Court

27 A. 1113

63 Conn. 254

Appeal of GUNN.

Supreme Court of Errors of Connecticut.

July 6, 1893.

Appeal from superior court, Fairfield county; Thayer, Judge.

Appeal by Albert W. Gunn from a decree admitting to probate the will of Stephen Hawley, deceased. Verdict and judgment in superior court for proponents. Contestant appeals. Affirmed.

S. Tweedy and R. J. Shadbolt, for appellant.

S. Judson, Jr., for appellees.

FENN, J. The record presents only a single question for our consideration. The appellant, who was a nephew and one of the next of kin and heirs at law of Stephen Hawley, deceased, opposed the probate of the will of said Hawley, which disposed of an estate of about $40,000 without mentioning the appellant; and upon the trial to the jury, in the superior court, he claimed, and offered evidence to prove, want of capacity in the testator, and undue and improper influence exerted over him by and in behalf of those claiming under the will. The appellee claimed and offered evidence to the contrary. It appeared from the evidence, and was undisputed, that substantially the en tire estate of the testator was acquired by him by will from his wife, and by deed from his wife's sister, both of whom died about nine months before he did; and that the legatees to whom the bulk of the estate was given by the will were blood relations of the testator's wife and her sister. After the appellant had closed his case, the appellee claimed, and offered evidence to prove, that, at the time Mrs. Hawley executed her will and her sister executed her deed, (which was on March 17, 1890, 17 months before the testator executed his will in question, and about 2 years before his death,) "they were made with the verbal request and understanding that, upon the death of the testator, all of their estate so willed and conveyed should go to his wife's relations." Among the witnesses offered by the appellee was John A. Foster, who testified, in substance, that he was present as a witness when the will of Mrs. Hawley and the deed were executed, and that it was then and there stated by Mrs. Hawley or her sister, or by both, in Mr. Hawley's presence, that the property then willed and conveyed to him would at his death go back to his wife's relations on her mother's side, and that it was all so arranged. To this evidence the appellant objected, upon the ground that it was irrelevant and immaterial. The court overruled the objection, and admitted the evidence, upon the ground that it tended to show the mental condition of the testator,—whether undue influence was exercised upon him or not by the beneficiaries under the will. The appellant excepted to this ruling. Was it correct?

It is the claim of the appellant that the evidence admitted was a mere declaration of Mrs. Hawley or her sister, or both, made at the time when they executed the will and deed, and solely in reference thereto,—that is, as to their effect; that it was not admissible thus to vary or affect the legal relations of the...